Opposition Brief — Michigan v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-46)

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Supreme Court, US.

FILED

OCT 15 2014

No. 14-46, -47, -49

Gn the Supreme Court of the Anited States

MICHIGAN, ET AL.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et AL.,

Respondents.

UTILITY AIR REGULATORY GROUP,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et AL.,

Respondents.

NATIONAL MINING ASSOCIATION,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et Ax.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION

Martha Coakley

Attorney General of Massachusetts

Melissa Hoffer*

Tracy L. Triplett

Assistant Attorneys General

Environmental Protection Division

One Ashburton Place, 18th Floor

Boston, MA 02108

617-963-2322

melissa.hoffer@state.ma.us

*Counsel of Record

(Additional counsel listed on inside pages)

Becker Gallagher Cincinnati, OH - Washingion, D.C. - 800.890.5001

KAMALA D. HARRIS

Attorney General of

California

455 Golden Gate Ave.

Suite 11000

San Francisco, CA 94102

GEORGE JEPSEN

Attorney General of

Connecticut

55 Elm St.

Hartford, CT 06141

JOSEPH R. BIDEN, ITI

Attorney General of

Delaware

820 N. French St.

Wilmington, DE 19801

LISA MADIGAN

Attorney General of

Illinois

100 W. Randolph St.

12th Floor

Chicago, IL 60601

THOMAS J. MILLER

Attorney General of

lowa

1305 E. Walnut Street

Des Moines, IA 50319

JANET T. MILLS

Attorney General of

Maine

6 State House Station

Augusta, ME 04333

DOUGLAS F. GANSLER

Attorney General of

Maryland

1800 Washington Blvd.

Baltimore, MD 21230

LORI SWANSON

Attorney General of

Minnesota

(for the Minnesota

Pollution Control Agency)

445 Minnesota St.

Suite 900

St. Paul, MN 55101

JOSEPH A. FOSTER

Attorney General of

New Hampshire

33 Capitol St.

Concord, NH 03301

GARY K. KING

Attorney General of

New Mexico

P.O. Box 1508

Santa Fe, NM 87504

ERIC T. SCHNEIDERMAN

Attorney General of

New York

The Capitol

Albany, NY 12224

ROY COOPER

Attorney General of

North Carolina

P.O. Box 629

Raleigh, NC 27602

ELLEN F. ROSENBLUM

Attorney General of

Oregon RS

1162 Court St. NE

Salem, OR 97301

PETER F. KILMARTIN

Attorney General of

Rhode Island -

150 South Main St.

Providence, RI 02903

WILLIAM H. SORRELL

Attorney General of

Vermont

109 State St.

Montpelier, VT 05609

IRVIN B. NATHAN

General for the

District of Columbia

441 4th Street, NW

Washington, DC 20001

GEORGE A. NILSON

City Solicitor for the

City of Baltimore

100 Holliday St.

Baltimore, MD 21202

STEPHEN R. PATTON

Corporation Counsel of the

City of Chicago

30 N. LaSalle St.

Suite 800

Chicago, IL 60602

MICHAEL A. SIRAGUSA

County Attorney for the

County of Erie

95 Franklin St.

Room 1634

Buffalo, NY 14202

ZACHARY W. CARTER

ion Counsel of the

City of New York

100 Church St.

New York, NY 10007

COUNTERSTATEMENT OF

QUESTION PRESENTED

Clean Air Act Section 112(n)(1)(A) directs the

Environmental Protection Agency (EPA) to regulate

hazardous air pollutants from power plants if

“appropriate and necessary” after studying public

health hazards; the required study and other scientific

data confirmed that power plant hazardous air

pollution presents a serious risk to public health, and

Congress omitted any reference to costs in Section

112(n)\1)(A), although Congress expressly told EPA to

consider costs in taking other actions required by

Section 112. The question presented is:

Whether EPA permissibly declined to consider the

costs of reguiation when it made its threshold

determination to regulate hazardous air pollutants

from power plants.

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION

PRESENTED

TABLE OF CITED AUTHORITIES

INTRODUCTION

STATEMENT

REASONS FOR DENYING THE PETITIONS

IT.

Il.

The D.C. Circuit’s Ruling That EPA Was Not

Required to Consider Costs in Making

Its Threshold Determination Whether

to Regulate Hazardous Air Pollutants

from Power Plants Under Section 112 of the

Act Is Fully Consistent With this Court’s

Precedent

EPA’s Interpretation of Section 112(n)(1)(A)

Has No Precedential Importance Because the

Provision Applies Only to the Agency's

Threshold Determination to Regulate Power

Plant Hazardous Air Pollution

States’ Experience Shows That, as a

Practical Matter, the MATS Rule Is

Achievable, Cost-Effective Control

Technologies Are Readily Available, and

There Is No Real-World Impediment to

Compliance

CONCLUSION

iii

TABLE OF CITED AUTHORITIES

CASES

EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584 (2014) 13, 16, 25

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) 12, 13, 14, 15, 16

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) 7,17

North Carolina v. EPA,

531 F.3d 896 (D.C. Cir. 2008) 25

North Carolina v. EPA,

550 F.3d 1176 (D.C. Cir. 2008) 25

Utility Air Regulatory Group v. EPA,

134 S. Ct. 2427 (2014) 15, 16, 17

Whitman v. American Trucking Associations, Inc.,

531 U.S. 457 (2001) 12, 13, 14, 15, 18

FEDERAL STATUTES

33 U.S.C. § 1313(d)(1) 8

42 U.S.C. § 7410(aX2)(D)i) 13

42 U.S.C. § 7412(b)(1) 3

42 U.S.C. § 7412(c)(1) 3

42 U.S.C. § 7412(c\(9) 7,16

42 U.S.C. § 7412(cX9)BXi) 9

42 U.S.C. § 7412(c)(9X Bil) 7

42 U.S.C. § 7412(d)(2) 4,17

42 U.S.C. § 7412(d)(3) 21

42 U.S.C. § 7412(d)(3)(A)-(B) 3

42 U.S.C. § 7412(n)(1)(A) passim

42 U.S.C. § 7412(n)(1)(B) 6, 16

Clean Air Act Amendments of 1970, Pub. L. No. 91-

604, 84 Stat. 1676 (1970) 3

FEDERAL REGISTER NOTICES

63 Fed. Reg. 57,356 (Oct. 27. 1998) 25

65 Fed. Reg. 79,825 (Dec. 20, 2000) 5,6

68 Fed. Reg. 7,928 (Dec. 19, 2003) 10

70 Fed. Reg. 15,994 (Mar. 29, 2005) 7

70 Fed. Reg. 25,162 (May 12, 2005) 25

70 Fed. Reg. 59,402 (Oct. 12, 2005) 10

71 Fed. Reg. 76,518 (Dec. 20, 2006) 10

72 Fed. Reg. 74,088 (Dec. 28, 2007) 10

73 Fed. Reg. 226 (Jan. 2, 2008) 10

75 Fed. Reg. 15,608 (Mar. 21, 2011) 10

76 Fed. Reg. 9,450 (Feb. 17, 2011) 10

76 Fed. Reg. 24,976 (May 3, 2011) 6, 9, 10, 22

76 Fed. Reg. 48,208 (Aug. 8, 2011) 9, 25

77 Fed. Reg. 9,304 (Feb. 16, 2012) passim

STATE STATUTES AND REGULATIONS

5 COLo. CODE REGS. § 1001-8:B. VIII

CONN. GEN. STAT. § 22a-199

CONN. GEN. STAT. § 22a-199(b)(1)

DEL. ADMIN. CODE, tit. 7, § 1146-6

DEL. ADMIN. CODE, tit. 7, § 1146-6.2

ILL. ADMIN. CODE tit. 35, § 225.230

ILL. ADMIN. CODE tit. 35, § 225.230(a)

MASS. REGS. CODE tit. 310, § 7.29

MASS. REGS. CODE tit. 310, § 7.29(5)(a)(3)(f)

MD. REGS. CODE tit. 26, § 11.27.03.D

MICH. ADMIN. CODE r. 336.2502a

MICH. ADMIN. CODE r. 336.2503(1)(a)-(b) (2009)

MINN. R. 7011.0561

MONT. ADMIN. R. 17.8.771

N.H. REV. STAT. ANN. § 125-O0:11-18

N.J. ADMIN. CODE § 7:27-27.7

N.Y. COMP. CODES R. & REGS. tit. 6, § 246.6

N.Y. COMP. CODES R. & REGS. tit. 6, § 246.6(a)

15A N.C. ADMIN. CODE 2D.2511

Or. ADMIN. R. 340-228-0606

Or. ADMIN. R. 340-228-0606(1)

23, 24

WIs. ADMIN. CODE NR § 446.13 23

WIs. ADMIN. CODE NR § 446.13(1) 24

OTHER AUTHORITIES

Connecticut Dep’t of Energy & Envti. Protection,

Comments, Proposed MATS Rule (2011),

available at http://www.regulations.gov 24, 25

EPA, 2011 National Listing of Fish Advisories,

EPA-820-F-13-058 (2013), available at http://wat

er.epa.gov/scitech/swguidance/fishshellfish/fish

advisories/loader.cfm?csModule=security/getfil

e&PageID=685927 (last visited Oct. 8, 2014) 7

1 LEGISLATIVE HISTORY OF THE CLEAN AIR ACT

AMENDMENTS OF 1990 (1993) 4,5

Massachusetts Dept of Envtl. Protection,

Comments, Proposed MATS Rule (2011),

available at http://www.regulations.gov 24, 25

Michigan Dep’t of Envtl. Quality, Comments,

Proposed MATS Rule (2011), available at

http://www.regulations.gov 21, 22

Nat’ Ass’n of Clean Air Agencies, Comments,

Proposed MATS Rule (2011), available at

http://www.regulations.gov 8, 24, 25, 26

New Jersey Dep’t of Envtl. Protection, Comments,

Proposed MATS Rule (2011), available at

http://www.regulations.gov 24, 25

New York State Dep’t of Envti. Conservation,

Comments, Proposed MATS Rule (2011),

available at http://www.regulations.gov 25

Vii

Northeast States for Coordinated Air Use

Management, Comments, Proposed MATS Rule,

available at http://www.regulations.gov 24, 25

Regional Mercury Total Maximum Daily Load, 44

(2007) (Northeast TMDL) available at

http://www.epa.gov/region 1/eco/tmd!/pdfs/ne/N

ortheast-Regional-Mercury-TMDL.pdf (last

visited Oct. 8, 2014) 2,8

S. REP. No. 101-228 (1989) 3,4

]

INTRODUCTION

Over two decades ago, Congress amended Section

112 of the Clean Air Act and directed EPA to establish

standards to limit hazardous air pollutants emitted by

fossil-fueled power plants if EPA determined, after

studying the public health hazards of those emissions,

that it was “appropriate and necessary” to do so. In

2000, EPA made that determination based on an

extensive record reflecting over a decade of research,

including peer-reviewed scientific studies and actual

power plant emissions data. EPA reaffirmed that

finding, citing additional evidence, when it

subsequently promulgated the Mercury and Air Toxics

Standards (MATS) Rule in 2012 to protect public

health and the environment.

By 2015, the MATS Rule will reduce power plant

mercury emissions by seventy-five percent, fine

particulate matter emissions (to which other toxic

metals adhere) by nineteen percent, and acid gas

emissions by eighty-eight percent. 77 Fed. Reg. 9,304,

9,424 (Feb. 16, 2012). These nationally-applicable

reductions have been long-awaited by the undersigned

states and local governments to stem the cross-border

movement of toxins that are emitted by power plants in

other states and that harm our residents and natural

resources. For example, more than 10,000 inland

waterbodies and over 46,000 river miles in the

Northeast are impaired for fish consumption primarily

due to atmospheric deposition of mercury, a problem

that will not be solved until out-of-state emissions are

controlled.’

None of Petitioners’ claims regarding the MATS

Rule warrants this Court’s review. EPA made the

reasonable decision to base its threshold determination

whether to regulate on the public health and

environmental harms posed by hazardous air pollution

emitted by power.plants and not to focus on costs when

making that threshold determination. The D.C.

Circuit’s decision upholding the MATS Rule was based

on a careful analysis of the relevant text, structure, and

context of Section 112, is consistent with this Court’s

precedent, and involves interpretation of a singular

provision of Section 112 that has no recurring

significance as it will be applied only this one time.

Petitioners wrongly claim that regulation of the

Nation's largest source of toxic air emissions will

provide “virtually no benefit” to public health, Pet. of

the Nat’] Mining Ass’n. (NMA Pet.) at 15, while unduly

burdening the utility industry and_ electricity

consumers, see, e.g., Pet. of the Utility Air Regulatory

Group (UARG Pet.) at 33-34; Pet. of the State of

Michigan, et al., at 11-12 (Michigan Pet.). Not only do

Petitioners grossly understate the benefits identified by

EPA as part of its separate regulatory impact analysis,

they also fail to account for the experience of the states

that have already successfully promulgated mercury

emission standards more stringent than the MATS

—_— —

' See Regional Mercury Total Maximum Daily Load, at vi, 44

(2007) (Northeast TMDL) available at http//www.epa.gov/region 1

/eco/tmdl/pdfs/ne/Northeast-Regional-Mercury-TMDL.pdf (last

visited Oct. 8, 2014).

Rule. Power plants in those states have been able to

comply with such standards—demonstrating that, as a

practical matter, the MATS Rule is achievable using

commercially available, cost-effective control

technologies and without sacrificing electric system

reliability.

The petitions should be denied.

STATEMENT

Since 1970, Congress has sought to reduce

hazardous air pollutant emissions. See Clean Air Act

Amendments of 1970, Pub. L. No. 91-604, 84 Stat.

1676, 1685 (1970). In 1990, in large part due to EPA’s

failure to regulate more than a handful of these toxic

pollutants over nearly two decades, Congress

extensively revised the Clean Air Act’s hazardous air

pollutant provision, Section 112. See S. REP. No. 101-

228, at 128, 131 (1989). Congress identified 189

hazardous air pollutants that EPA must regulate. 42

U.S.C. § 7412(b)(1). Congress then gave EPA one year

to list all categories of sources emitting more than a

specified quantity of those pollutants. Jd. § 7412(c)(1).

Congress required EPA to set emission limits based on

what is commonly referred to as the “maximum

achievable control technology” (MACT) standard, with

minimum or “floor” standards for existing sources

based upon the emission levels achieved by the best-

performing twelve percent of sources in a source

category. Id. § 7412(d)(3A)-(B) (a standard that, by

definition, reflects cost considerations since it is based

on the presumably cost-effective performance of actual

units). Congress also required EPA to set, where

achievable, a more stringent “beyond-the-floor”

standard, after consideration of costs and other factors.

Id. § 7412(d)(2).

At the time of the 1990 amendments, Congress

recognized power plants were a significant source of

hazardous air pollutants, including mercury.’

Congress required EPA to study the public health

hazards “reasonably anticipated to occur” from

hazardous air pollutants emitted by power plants “after

imposition of” the other requirements of the Act, and

mandated EPA to regulate if EPA determined it was

“appropriate and necessary” to do so:

[t]he Administrator shall perform a study of the

hazards to public health reasonably anticipated

to occur as a result of emissions by [power

plants] of pollutants listed under subsection (b)

of this section after imposition of the

requirements of this chapter. The

Administrator shall report the results of this

study to the Congress within 3 years after

November 15, 1990. The Administrator shall

develop and describe in the Administrator’s

report to Congress alternative control strategies

for emissions which may warrant regulation

under this section. The Administrator shall

regulate [power plants] under this section, if the

Administrator finds such regulation is

appropriate and necessary after considering the

? See S. REP. No. 101-228, at 131, 154 (1989); 1 LEGISLATIVE

HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 871-72

(1993) (statement of Sen. Durenberger).

results of the study required by this

subparagraph.

42 U.S.C. § 7412(nX1XA).° This provision effectively

provided power plants with “a three-year pass,” while

EPA conducted the study required by Section

112(n\(1)(A) (Utility Study) and evaluated whether it

was “appropriate and necessary” to regulate them

under Section 112. NMA Pet. App. at 25a.

Despite Congress’s intent to address the public

health threat posed by power plant hazardous air

pollution, it was not until 2000, ten years after the

1990 amendments and seven years after Congress’s

deadline for EPA to have finalized the Utility Study,

that EPA made the determination that it was

“appropriate and necessary” to list power plants as a

source category. 65 Fed. Reg. 79,825, 79,831 (Dec. 20,

2000). EPA made this threshold determination based

on the Utility Study, which confirmed the adverse

public health effects associated with power plants’

hazardous air pollution. Jd. at 79,826. Specifically,

EPA cited contamination of U.S. waterbodies and fish

with mercury—a potent neurotoxin, which, when

ingested, can cause serious and long-lasting

neurological problems, especially in children exposed in

utero—as well as the potential carcinogenic effects of

certain non-mercury metals emissions and potential

* This provision addressed questions raised by some members

regarding the effect of the Title [V acid rain program pollution

controls, also added in 1990, on power plant hazardous air

pollutant emissions, see 1 LEGISLATIVE HISTORY OF THE CLEAN AIR

AcT AMENDMENTS OF 1990, supra note 2, at 871-72 (statement of

Sen. Durenberger), a program that had been implemented by the

time EPA issued the 2012 MATS Rule.

concerns related to acid gas emissions. /d. at 79,827,

79,829, 79,830. In addition to the Utility Study, EPA

considered the multi-source mercury study required by

Section 112(n1)(B) and two other congressionally-

mandated studies performed by the National Institute

of Environmental Health Sciences and the National

Academy of Sciences showing risks to public health,

including sensitive populations, of consuming mercury-

contaminated fish. See 77 Fed. Reg. at 9,307; 76 Fed.

Reg. 24,976, 24,982 (May 3, 2011); 65 Fed. Reg. at

79,826.

With regard to mercury, EPA found that sixty

percent of all mercury deposited in the U.S. came from

domestic anthropogenic air emissions and that power

plants contributed, at that time, nearly one-third of

those emissions.‘ 65 Fed. Reg. at 79,827. EPA also

noted that large numbers of Americans ate fish

regularly, id. at 79,829, that forty states had imposed

fish consumption advisories based on mercury

contamination, id. at 79,827, and that many women of

childbearing age were already exposed to dangerous

levels of methylmercury, id. at 79,829-30. Specifically,

EPA estimated that seven percent of women of child-

bearing age were exposed to methylmercury at a level

capable of causing adverse effects in a developing fetus

and one percent of those women were exposed to three

to four times that level. Jd. at 79,829-30.

In 2005, however, EPA reversed course. It

purported to remove power plants from the Section 112

* In its 2011 proposal of the MATS Rule, EPA noted that power

plants’ 1999 share had risen to forty-three percent based on

updated emissions data. 76 Fed. Reg. at 25,002, n.57.

list of source categories and, instead, to regulate

existing power plant mercury emissions under Clean

Air Act Section 111(d). 70 Fed. Reg. 15,994, 16,032

(Mar. 29, 2005). Many of the undersigned states and

local governments challenged those actions as unlawful

under the statute and likely to result in significantly

greater emissions of mercury than a rule issued under

Section 112. In 2008, the D.C. Circuit vacated EPA’s

delisting of power plants because EPA had failed to

comply with Section 112(c\9), which specifically

prohibits EPA from removing listed sources unless it

finds that the emissions from no individual source in

the category will “exceed a level which is adequate to

protect public health with an ample margin of safety”

or result in any “adverse environmental effect.” 42

U.S.C. § 7412(c)(9)(BXii); New Jersey v. EPA, 517 F.3d

574, 582-83 (D.C. Cir. 2008). EPA made no such

findings, New Jersey, 517 F.3d at 583, and indeed it

could not have made them, given the significant health

and environmental risks posed by power plant

emissions.

In 2012, EPA reaffirmed its 2000 listing

determination and issued the MATS Rule. See 77 Fed.

Reg. at 9,310-11, 9,366-76. By that time, all fifty states

had established fish consumption advisories related to

mercury contamination and many states had moved

forward to control mercury emissions within their own

borders, including by enacting rigorous mercury

emission limits on power plants. See EPA, 2011

National Listing of Fish Advisories, at 4-6, EPA-820-F-

13-058 (2013);° Nat'l Ass’n of Clean Air Agencies,

Cmts., Proposed MATS Rule (2011) (NACAA Cmts.),

Attach. 1.° In addition, to address widespread mercury

surface water contamination, seven northeastern states

began to implement a regional mercury “total

maximum daily load,” pursuant to the Clean Water

Act, 33 U.S.C. § 1313(d)(1) (requiring development of

total maximum daily loads for impaired waters). State

regulations standing alone, however, have proven

ineffective in addressing the cross-border impacts of

power plant mercury emissions. See Northeast TMDL,

supra note 1, at 44 (concluding that EPA action to

“implement significant reductions from upwind out-of-

region sources, primarily coal-fired power plants”

would be necessary to return fish methylmercury

concentrations to safe levels).

In its 2012 determination, EPA explicitly confirmed

its 2000 finding that regulation of power plants was

“appropriate and necessary” based on the record before

it in 2000, as well as on additional technica! analyses.

77 Fed. Reg. at 9,310-11, 9,362-64. In particular, EPA

completed a peer-reviewed national-scale mercury risk

assessment focused on those populations that eat a

large amount of self-caught, freshwater fish. Jd. at

9,311, 9,365-66. That study showed that twenty-nine

percent of the 3,140 modeled watersheds have

populations at risk of exceeding safe mercury levels

* Available at http//water.epa.gov/scitech/swguidance/fishshellfish

/fishadvisories/loader.cfm?csModule=security/getfile& PageI D=6

85927 (last visited Oct. 8, 2014).

* Available at http://www.regulations.gov (search for “EPA-HQ-

OAR-2009-0234-17620”).

due, in part, to mercury emissions from power plants.

Id. at 9,311, 9,339, 9,362, 9,366. Further, in ten

percent of the watersheds studied, power plant

emissions alone lead to exceedances of safe mercury

levels, a condition EPA found “unacceptable.” Id. at

9363, 9366. EPA also completed a peer-reviewed

inhalation study that found that emissions of nickel

and chromium from six of sixteen modeled power

plants would pose lifetime cancer risks exceeding the

benchmark level for delisting sources of carcinogenic

hazardous air pollutants under Section 112(c)(9)(B)(i).

Id. at 9,319.

Moreover, EPA found that power plants remained

one of the Nation’s most significant sources of

hazardous air pollutants and the largest single source

of anthropogenic mercury emissions—having increased

their share to fifty percent of total U.S. mercury

emissions in 2005. Jd. at 9,310. Indeed, in the absence

of the MATS Rule, EPA projects power plants will emit

nearly six times more mercury than the next largest

source category by 2016, even after application of other

control programs required by the Clean Air Act. 76

Fed. Reg. at 24,976, 25,002, Table 3 (May 3, 2011).’

Power plants’ proportional share of the Nation's

mercury emissions has grown as other sources have

been required to limit their mercury emissions by

complying with MACT standards set by EPA under

"In its final rule, EPA revised downward the projected power plant

mercury emissions from 29 tons to 27 tons based on additional

reductions in mercury emissions from the Cross-State Air

Pollution Rule, 76 Fed. Reg. 48,208 (Aug. 8, 2011). 77 Fed. Reg. at

9,338.

Section 112.° Power plants are also a significant source

of many other hazardous metals and the Nation’s

largest source of acid gases, which can cause chronic

and acute respiratory damage, especially in children,

and contribute to the acidification of our Nation's

waterbodies. 77 Fed. Reg. at 9,310, 9,363; 76 Fed. Reg.

at 25,004, 25,005, Table 4, 25,006, Table 5, 25,013,

25,016.

In light of that record, EPA concluded that it was

“appropriate and necessary’ to regulate power plants

based on the public health and environmental] hazards

posed by their emissions of mercury and other

hazardous air pollutants, and it promulgated MACT

standards for power plant emissions of those

pollutants. See 77 Fed. Reg. at 9,310-11, 9,367-71. In

reaching that conclusion, EPA reasonably found it

would not be appropriate to consider costs at the point

of its threshold determination “whether to regulate

[power plants] under section 112” because, among other

things, “there is nothing in [Section 112(n)(1)(A)] that

compels EPA to consider costs.” 77 Fed. Reg. at 9,327.

Numerous parties, including Petitioners, challenged

EPA's interpretation and application of the terms

“appropriate” and “necessary” and its decision to

* See id.; 75 Fed. Reg. 15,608 (Mar. 21, 2011) (industrial,

commercial, institutional boilers, and process heaters); 76 Fed.

Reg. 9,450 (Feb. 17, 2011) (gold mine ore processing and

production); 73 Fed. Reg. 226 (Jan. 2, 2008) (iron and steel

foundries); 72 Fed. Reg. 74,088 (Dec. 28, 2007) (electric arc furnace

steelmaking facilities); 71 Fed. Reg. 76,518 (Dec. 20, 2006)

(Portland cement manufacturing industry); 70 Fed. Reg. 59,402

(Oct. 12, 2005) (hazardous waste combustors); 68 Fed. Reg. 7,928

(Dec. 19, 2003) (mercury cell chlor-alkali plants).

regulate power plants using MACT standards. On

April 15, 2014, in a per curiam opinion, the D.C.

Circuit upheld the MATS Rule, dismissed one petition,

and denied all of the remaining petitions. Judge

Kavanaugh dissented, in part, opining that EPA should

have considered costs when deciding whether to

regulate power plants under Section 112.

REASONS FOR DENYING THE PETITIONS

The D.C. Circuit correctly afforded Chevron

deference to EPA’s reasonable interpretation that it

was not required to consider costs for purposes of its

threshold determination whether to regulate power

plant hazardous air pollution under Section

112(n)(1XA). That decision is fully consistent with this

Court’s precedent. The plain language of Section

112(n)(1\A), statutory context, and legislative history

demonstrate that Congress intended EPA to regulate

hazardous air pollutants emitted by power plants

under Section 112 if EPA found it was “appropriate and

necessary” to do so based on the Utility Study and

taking into account the effect of other Clean Air Act

provisions on controlling that pollution. The D.C.

Circuit correctly found that Congress included no

requirement to consider costs in Section 112(n)(1)(A)

and that EPA’s decision not to consider costs in

determining whether to regulate power plants under

Section 112 was a permissible one.

Further, Section 112(n)(1)(A) concerns a one-time

determination by EPA whether to regulate hazardous

air pollution from power plants. The “appropriate and

necessary” standard provided by Congress to guide

EPA’s determination applies to no other EPA

determinations under the Clean Air Act, and the

decision below is therefore one of limited applicability.

That decision neither precludes EPA from nor requires

EPA to consider costs in any other Clean Air Act

rulemaking, but rather properly resolves the question

whether costs must be considered in this particular

rulemaking on the basis of the unique statutory

language in Section 112(n)(1)(A) and the relevant

statutory history and context.

Finally, no practical concerns warrant this Court's

review. Several states have implemented mercury

control standards more rigorous than those set forth in

the MATS Rule, demonstrating that the Rule's

emissions reduction requirements are achievable, cost-

effective control technologies are available, and

compliance with such standards causes no adverse

effects on electric system reliability.

I. The D.C. Circuit’s Ruling That EPA Was

Not Required to Consider Costs in Making

Its Threshold Determination Whether to

Regulate Hazardous Air Pollutants from

Power Plants Under Section 112 of the Act

Is Fully Consistent With this Court’s

Precedent.

The D.C. Circuit’s ruling that EPA permissibly

chose not to consider costs for purposes of its threshold

determination whether to regulate hazardous air

pollutants emitted by power plants falls squarely

within this Court’s precedent. See, e.g., Whitman v.

American Trucking Associations, Inc., 531 U.S. 457,

467-71 (2001) (affirming EPA decision not to consider

costs when setting National Ambient Air Quality

Standards (NAAQS) where statute did not expressly

require costs to be considered); Entergy Corp. v.

Riverkeeper, Inc., 556 U.S. 208, 217-18 (2009) (EPA’s

interpretation that the Clean Water Act’s “best

technology available” standard permits consideration

of a technology’s costs “governs if it is a reasonable

interpretation of the statute—not necessarily the only

possible interpretation, nor even the interpretation

deemed most reasonable by the courts”) (emphasis in

original); EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584, 1603, 1610 (2014) (affording Chevron

deference to EPA’s “reasonable interpretation of

ambiguous statutory language,” and upholding EPA’s

determination to take the cost of pollution reduction

into account for purposes of allocating among upwind

states obligations to reduce pollution under the Clean

Air Act’s Good Neighbor Provision, 42 U.S.C.

§ 7410(a)(2)(D\i)).

Here, applying Chevron, the only question is

whether EPA’s interpretation of Section 112(n)(1)(A) as

not requiring it to consider costs is reasonable, and the

D.C. Circuit correctly held that it is. The D.C. Circuit’s

decision does not preclude EPA from considering costs

in any other Clean Air Act rulemaking; rather, by

closely analyzing the statutory text and the context in

which the 1990 amendments were enacted, it rightly

follows Whitman, see Entergy Corp., 556 U.S. at 223

(noting that in Whitman, taken in context, statutory

silence was best interpreted as limiting agency

discretion), Entergy Corp., see id. at 222 (taken in

context, statutory silence “meant to convey nothing

more than a refusal to tie the agency’s hands as to

whether cost-benefit analysis should be used, and if so

to what degree”), and EME Homer City, 134 S. Ct.

1584, 1607 (2014) (“[l]acking a dispositive statutory

instruction to guide it, EPA’s decision, we conclude, is

a ‘reasonable’ way of filling the ‘gap left open by

Congress.”). The decision creates no new bright line or

any rule regarding when costs may be considered by

EPA for purposes of Clean Air Act rulemaking, and it

cannot, since such questions turn on interpretations of

specific statutory language, and where appropriate,

legislative history and other record facts that shine

light on congressional intent and the reasonableness of

the agency interpretation. See Entergy Corp., 556 U.S.

at 222 (“under Chevron, that an agency is not required

to [consider costs] does not mean that an agency is not

permitted to do so.”) (emphasis in original).

In Whitman, this Court denied a similar attempt to

overturn EPA’s decision not to consider the costs of

implementation when setting NAAQS for the

protection of public health and welfare under Section

109 of the Clean Air Act. 531 U.S. at 464-471. In

rejecting the industry respondents’ interpretation of

the provision as allowing for consideration of costs,

Justice Scalia noted numerous provisions where, in

contrast to Section 109, Congress expressly authorized

cost consideration, stating “[w]e have therefore refused

to find implicit in ambiguous sections of the [Clean Air

Act] an authorization to consider costs that has

elsewhere, and so often, been expressly granted.” /d. at

467. Because respondents failed to show a clear

“textual commitment of authority to the EPA to

consider costs in setting NAAQS under § 109(b)(1),” id.

at 468, “[t]he text of § 109(b), interpreted in its

statutory and historical context and with appreciation

for its importance to the [Clean Air Act] as a whole,

unambiguously bar[red] cost considerations from the

NAAQS-setting process.” Jd. at 471.

Although, as the D.C. Circuit noted, the language of

Section 109 differs from the language of Section 112 at

issue here, Whitman teaches that the interpretation of

“appropriate and necessary” is context-dependent.

Looking to the surrounding words, the language of the

entire provision, and the “statutory and historical

context,” EPA’s decision not to consider costs for

purposes of its “appropriate and necessary”

determination was reasonable. Jd. at 471; see also

Entergy Corp., 556 U.S. at 217-22; 223.

First, the plain language of Section 112(n)(1)A),

which nowhere mentions costs, leaves no doubt that

Congress intended EPA’s consideration of “hazards to

public health” in the Utility Study to be the touchstone

informing its decision whether it was “appropriate and

necessary’ to regulate power plant hazardous air

pollutant emissions. Congress was aware of the public

health impacts of these highly toxic emissions and

granted broad authority to EPA in the 1990

Amendments to undertake whatever action was

“appropriate and necessary,” based on the results of the

Utility Study, to control those emissions to the extent

they would not be controlled under other Clean Air Act

provisions, regardless of cost. As the D.C. Circuit

* Petitioners’ attempt to invoke this Court's recent decision in

Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2446 (2014)

for the proposition that EPA does not have the “power to revise

clear statutory terms,” UARG Pet. at 27, misses the mark. There,

EPA sought to change the statutory thresholds for triggering

permitting requirements under the Act’s Prevention of Significant

Deterioration and Title V programs to address the substantial

practical implementation problems that would have made it nearly

impossible to apply the statute’s relatively low tonnage thresholds

to greenhouses gases. Utility Air Regulatory Grp., 134 S. Ct. at

observed, Section 112(c)(9), governing delisting of

hazardous air pollutant source categories, provides

further support for EPA’s interpretation. See 42 U.S.C.

§ 7412(c(9); NMA Pet. App. at 3la. The plain

language of that provision requiring EPA to consider

public health and environmental effects—not

costs—when making a delisting determination, id.,

further evidences Congress’s intent that costs should

not be a focus of EPA’s decision whether to list or delist

source categories.

Second, reading Section 112 as a whole, it is clear

that “Congress mentioned costs explicitly where it

intended EPA to consider them,” including in

subparagraph 112(n)(1B), which immediately follows

Section 112(n)(1XA). See NMA Pet. App. at 24a (citing

provisions of Section 112 where costs are mentioned

expressly). Further, in contrast to Petitioners’ reading,

EPA’s decisions to consider costs in deciding the extent

of required pollution reductions from upwind states

under the Clean Air Act, as in EME Homer City, or of

setting national performance standards for cooling

water intake structures at power plants under the

Clean Water Act, as in Entergy Corp., are materially

different than EPA’s decision at issue here—whether to

regulate hazardous air pollutants from power plants at

all. Given that Congress did not require EPA to

consider costs in making the threshold determination

2437-38, 2442-44. Unlike the statutory provision at issue in Utility

Air Regulatory Group, Section 112(n\ 1A) was specifically crafted

by Congress to address hazardous air pollution from power plants

and EPA’s interpretation not to read a cost requirement into its

decision whether to regulate does nothing to change any aspect of

the express statutory language of Section 112.

whether to regulate power plant hazardous air

pollution under Section 112(n)(1)(A), exercising its

discretion to consider costs in determining the extent

of regulation, but not in determining whether to

regulate, is a reasonable choice for EPA to make, and

consistent with the overall statutory framework of

Section 112. See supra at pp. 3-4; 42 U.S.C.

§ 7412(d)(2) (requiring EPA to consider costs for

purposes of beyond-the-floor standard setting for

hazardous air pollutant control).

Third, Section 112(n)(1)(A) addresses hazardous air

pollution. As the D.C. Circuit noted, EPA’s

interpretation of “appropriate and necessary” is

reasonable in light of the purpose of the 1990

Amendments, “which were aimed at remedying ‘the

slow pace of EPA’s regulation of [hazardous air

pollutants] following the initial passage of the [Clean

Air Act].” NMA Pet. App. at 26a (citing New Jersey,

517 F.3d at 578). The statutory and historical context

confirm the reasonableness of EPA’s interpretation of

Section 112(n)(1)(A)—focusing on public health

impacts, not costs, at the threshold point of

determining whether to regulate—and the absence of

any conflict with this Court’s precedent.

Nevertheless, citing Utility Air Regulatory Group v.

EPA, 1348. Ct. 2427, 2444 (2014), Petitioners urge this

Court to adopt a new exception to Chevron that affords

less deference to agencies in cases involving “critical

impacts on American industry,” UARG Pet. at 33, 35,

and substantial regulatory costs, see NMA Pet. at 15-

16, 22 (questioning EPA’s exercise of discretion in

connection with adoption of “massively costly

regulations for virtually no return”). Petitioner UARG

asks this Court to inject a judge-made cost-benefit

analysis requirement into agency rulemaking wherever

Congress has not expressly precluded cost

considerations, see UARG Pet. at 30—a result that

would subvert Congressional intent and raise

significant separation of powers concerns. Such a new

standard of review for agency rulemaking would

significantly diminish agency discretion; in instances

where Congress has not clearly precluded cost

considerations, agency rulemaking to implement a

regulatory statute that does not make cost

consideration a central factor would be deemed

unreasonable per se. See id. Setting aside Petitioners’

inaccurate characterization of EPA’s regulatory

impacts analysis of the costs and benefits of the MATS

Rule, neither this Court’s precedent, nor that of any

court of appeals, recognizes any less deferential

standard of review for agency action that involves

costly regulation.

Finally, Petitioners’ argument that Congress could

not have intended for EPA to regulate power plants

under Section 112 without giving any consideration to

costs rests on a “false premise,” as the D.C. Circuit

found. NMA Pet. App. at 27a. Petitioners’

characterization of the decision below as “authorizing

the Agency to ignore the costs of its regulations,” NMA

Pet. at 6, is simply inaccurate. Noting that Congress

expressly required EPA to take costs into account for

beyond-the-floor standards, the D.C. Circuit held that

“fhjere, as in Whitman, interpreting one isolated

provision not to require cost consideration does not

indicate that Congress was unconcerned with costs

altogether, because Congress accounted for costs

elsewhere in the statute.” NMA Pet. App. at 27a. The

D.C. Circuit correctly observed, as well, that, as a

practical matter, “even for MACT floors, costs are

reflected to some extent because floors correspond (by

definition) to standards that better-performing [power

plants] have already achieved, presumably in a cost

efficient manner.” Jd. (emphasis in original).

Petitioners’ proper recourse lies with Congress, not

this Court. EPA permissibly concluded that, in

determining whether regulation is “appropriate and

necessary,” it should focus its attention on factors

relating to public health hazards, and not industry’s

objections that emissions controls are costly, properly

putting “the horse before the cart, and not the other

way around.” Id. at 29a.

Il. EPA’s Interpretation of Section 112(m)(1)(A)

Has No Precedential Importance Because

the Provision Applies Only to the Agency’s

Threshold Determination to Regulate

Power Plant Hazardous Air Pollution.

This case does not have the “enormous precedential!

importance for administrative law” alleged by

Petitioner NMA, NMA Pet. at 6, for the simple reason

that the statutory language in question applies only to

EPA’s threshold decision to regulate power plant

hazardous air pollution, and to no other decision. The

“appropriate and necessary” standard is unique to

Section 112’s treatment of power plants, and does not

apply to EPA’s regulation of other sources of hazardous

air pollutants under Section 112, or any other type of

air pollutant emitted by power plants or any other

source.

As Petitioners recognize, Section 112(n)(1)(A) was

included in the 1990 Clean Air Act amendments

specifically and exclusively to address power plant

hazardous air pollutant emissions. See Michigan Pet.

at 3 (“Congress has chosen to treat certain sources of

hazardous air pollutants differently than others.”); id.

at 4 (“Congress has chosen to treat [power plants] very

differently from other major sources.”); UARG Pet. at

8 (“Congress in 42 U.S.C. § 7412(n)(1)(A) required that

EPA treat [power plants] differently from every other

source category regulated under § 7412”); NMA Pet. at

7 (“Congress treated electric generators differently

from other source categories of fhazardous air

pollutant] emissions”).

Petitioners’ own repeated assertion that Section

112(n)(1)(A) treated power plants “very differently”

belies their argument that the decision below will open

the floodgates to unbridled “executive branch

lawmaking.” UARG Pet. at 26. Far from constituting

a sea change in administrative law, because of the

highly specific nature of the legislation, and the

particular facts and long history surrounding Clean Air

Act regulation of power plant pollution, the decision

below is one of limited applicability. This is a

straightforward administrative law case involving the

interpretation of a single provision of the Clean Air

Act—Section 112(n\1)(A)} that will apply once, to one

class of pollutants—hazardous air pollutants—and one

source category—power plants. The D.C. Circuit

properly applied this Court’s Chevron analysis to

support its holding that EPA’s interpretation of that

unique provision—as not requiring EPA to consider

costs for purposes of its “appropriate and necessary”

determination—constituted a reasonable exercise of its

agency discretion.

Itl. States’ Experience Shows That, as a

Practical Matter, the MATS Rule Is

Achievable, Cost-Effective Contro)

Technologies Are Readily Available, and

There Is No Real-World Impediment to

Compliance.

Petitioners’ contention that the MATS Rule will

impose unreasonable burdens on industry or electricity

consumers, see, e.g., Michigan Pet. at 11-12, 18; UARG

Pet. at 33-34, is contradicted by states’ experience to

date. Power plants in several states already comply

with standards that are equally stringent as or even

more stringent than the MATS Rule, using long-

established technologies, and they have done so

without sacrificing electric system reliability. Indeed,

it is the actual performance of power plants employing

economically viable controls—such as those located in

states with already established hazardous air pollutant

standards—that EPA relied on in setting the MACT

floor standard in the MATS Rule, as required by

Section 112(d)(3).

Commenting in 2011 on EPA’s proposed standards,

Petitioner Michigan’s Department of Environmental

Quality (DEQ) represented that, with respect to

Michigan’s coal-fired units, “[wlith the right

combination of emission controls, the proposed mercury

emission limit is achievable by existing Michigan

units.” Michigan DEQ, Comments, Proposed MATS

Rule (2011) (Michigan Cmts.), at 2, available at

http://www.regulations.gov (search for “EPA-HQ-OAR-

2009-0234-18426”).*°** Michigan DEQ cited a number

of available pollution control technologies, including

fabric filter baghouses and wet and/or dry scrubber

systems, then being installed on Michigan power

plants, which “can be used to meet the proposed

mercury emission limit.” Id.

Michigan did not raise any concerns with respect to

either the cost of mercury control technology for

existing power plants or impacts on electric system

reliability in connection with compliance with the 2011

proposed rule (Proposed Rule). Indeed, as Michigan

DEQ noted, the Michigan Public Service Commission,

along with “a stakeholder workgroup consisting of

industry, environmental groups, and government

agencies” participated in the “intense rulemaking

process” that led to the development of Michigan’s own

standard, which, at that time, required as one of three

compliance options a “minimum of 90% reduction from

baseline input mercury levels or an output-based

mercury emission standard of 0.008 [(lb/GW-hr]” for

'° Notably, EPA’s 2011 proposed standards were more stringent

than the limits adopted by EPA in the Final Rule. Compare 76

Fed. Reg. at 25,027, Table 10 (proposing in 2011, 0.008 lb per

gigawatt-hour (Ilb/GW-hr) or 1.0 lb per trillion British thermal

units (Ib/TBtu)), with 77 Fed. Reg. at 9,367, Table 3 (adopting in

2012, 0.013 Ib/GWh or 1.2 Ib/TBtu).

" In fact, in its comments, Michigan voiced concern that the then-

proposed EPA mercury emission limit of 0.040 lb/GWh for a

subcategory of coal-fired power plants designed to burn low rank

virgin coal was not stringent enough given, among other things,

the serious public health concerns associated with mercury

emissions and the ready availability of control technology.

Michigan Cmts., supra, at 2.

existing coal-fired power plants. Jd. at 2-3 (internal

citations omitted); see also MICH. ADMIN. CODE r.

336.2503(1a)-(b) (2009)."

At least fourteen other states across the Nation

have enacted controls on power plant mercury

emissions, most of which are currently in effect.’

Nearly every state that has set a rate-based standard

has imposed one more stringent than the MATS Rule,

and several state standards are twice as stringent as

the MATS Rule mercury standard of 1.2 lb/TBtu or

’ In 2013, Michigan amended its regulations, which required

mercury controls by 2015, to exempt power plants subject to the

MATS Rule, and provided that the regulation as a whole will be

automatically repealed once there is “a final judgment or order

from which no further appeal or review is taken or available in

White Stallion v[.] EPA, No. 12-1100 (D.C. Circuit) upholding the

provisions of the [MATS Rule] relative to emissions of mercury.”

MICH. ADMIN. CODE r. 336.2502a.

8 See 5 COLO. CoDE REGS. § 1001-8:B. VIII (compliance with first

phase required by Jan. 1. 2012); CONN. GEN. STAT. § 22a-199

(compliance required by Jul. 1, 2008); DEL. ADMIN. CODE, tit. 7,

§ 1146-6 (compliance with first phase required by Jan. 1, 2009);

ILL. ADMIN. CODE tit. 35, § 225.230 (compliance required by Jul. 1,

2009); Mp. REGS. CoDE tit. 26, § 11.27.03.D (compliance with first

phase required by Jan. 1, 2010); MASS. REGS. CODE tit. 310, § 7.29

(compliance with first phase required by Jan. 1, 2008); MINN. R.

7011.0561 (compliance with first phase required by Jan. 1, 2018);

MONT. ADMIN. R. 17.8.771 (compliance required by Jan. 1, 2010);

N.H. REV. STAT. ANN. § 125-O0:11-18 (compliance required by Jul.

1, 2013); N.J. ADMIN. CODE § 7:27-27.7 (compliance required by

Dec. 15, 2007); N.Y. Comp. Copes R. & REGS. tit. 6, § 246.6

(compliance with first phase required by Jan. 1, 2010); 15A N.C.

ADMIN. CODE 2D.2511 (compliance required by Dec. 31, 2017); Or.

ADMIN. R. 340-228-0606 (compliance required by Jul. 1, 2012); Wis.

ADMIN. CODE NR § 446.13 (compliance required by Apr. 16, 2016).

0.013 Ib/GWh, see 77 Fed. Reg. at 9,367, Table 3.”

Compliance with Connecticut, Massachusetts, and New

Jersey's standards was required three to four years

prior to EPA’s 2011 proposal of the MATS Rule. By

that time, the affected power plants within those states

had timely and consistently met the mercury limits

with control technologies widely used throughout the

industry, and with no adverse effects on electric system

reliability.”

Similarly, the experience of the states in

implementing reductions in sulfur dioxide and nitrogen

oxides required by EPA’s 2005 Clean Air Interstate

'* See CONN. GEN. STAT. § 22a-199(bX 1) (0.6 Ib/TBtu); DEL. ADMIN.

CODE, tit. 7, § 1146-6.2 (0.6 lb/TBtu); ILL. ADMIN. CODE tit. 35,

§ 225.230(a) (0.008 lb/GW-hr); Mass. REGS. CODE tit. 310,

§ 7.2&5)ak3xXf) (0.0025 Ilb/GW-hr); MINN. R. 7011.0561 (0.8

lb/TBtu); N.J. ADMIN. CODE § 7:27-27.7(a) (3.00 mg/MWh

(equivalent to 0.66 Ib/TBtu)); N.Y. CoMP. CODES R. & REGS. tit. 6,

§ 246.6(a) (0.6 lb/TBtu); Or. ADMIN. R. 340-228-0606(1) (0.6

lb/TBtu); Wis. ADMIN. CODE NR § 446.13(1) (0.008 Ib/GW-hr).

'® See Connecticut Dep't of Energy & Envtl. Protection, Comments,

Proposed MATS Rule (2011), Technical Cmts. (Connecticut Cmts.),

at 1-2, available at http://www.regulations.gov (search for “EPA-

HQ-OAR-2009-0234-16513”); Massachusetts Dep’t of Envtl.

Protection, Comments, Proposed MATS Rule (2011)

(Massachusetts Cmts.), at 7. available at

http-//www.regulations. gov (search for “EPA-HQ-OAR-2009-0234-

18039”); New Jersey Dep't of Envtl. Protection, Comments,

Proposed MATS Rule (2011) (New Jersey Cmts.), at 1, 5, available

at http//www.regulations.gov (search for “EPA-HQ-OAR-2009-

0234-18444”); NACAA Cmts., supra note 6, at 7; Northeast States

for Coordinated Air Use Management, Comments, Proposed MATS

Rule (2011) (NESCAUM Cmts.), at 5-8, available at

http//www.regulations.gov (search for “EPA-HQ-OAR-2009-0234-

17843”).

Rule” and 1998 NOx SIP Call, 63 Fed. Reg. 57,356

(Oct. 27. 1998), demonstrates that the MATS Rule can

timely be implemented without disrupting electric

system reliability. NACAA Cmts., supra note 6, at 7.

Compliance with those separate rules has involved

installation of control technologies similar to those that

will be used to meet the mercury and acid gas limits

required under the MATS Rule. 7d.

For these reasons, several states—like

Michigan—reported in their comments on the Proposed

Rule that the coal-fired power plants within their

borders would be able to meet the proposed mercury

standard with technologies already in place.’’ Further,

the National Association of Clean Air Agencies

(NACAA), and several individual states, urged EPA to

go further, advocating for a lower mercury limit in

their comments on the Proposed Rule.” NACAA

* The Clean Air Interstate Rule, 70 Fed. Reg. 25,162 (May 12,

2005), was initially vacated by North Carolina v. EPA, 531 F.3d

896, 921 (D.C. Cir. 2008), but left in place on rehearing, North

Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), and

subsequently replaced by the Cross-State Air Pollution Rule, 76

Fed. Reg. 48,208 (Aug. 8, 2011), upheld by this Court in EPA v.

EME Homer City, 134 S. Ct. 1584 (2014). Both rules require

reductions in sulfur dioxide and nitrogen oxides emissions.

‘? Connecticut Cmts., supra note 15, at 1-2; Massachusetts Cmts.,

supra note 15, at 7; New Jersey Cmts., supra note 15, at 1;

NESCAUM Cmts., supra note 15, at 8.

‘® Massachusetts Cmts., supra note 15, at 2, 7; NACAA Cmts.,

supra note 6, at 9; New Jersey Cmts., supra note 15, at 5; New

York State Dep't of Envtl. Conservation, Comments, Proposed

MATS Rule (2011), Cvr., at 2, available at http://www.regulations.

gov (search for “EPA-HQ-OAR-2009-0234-17796”).

similarly pressed for consideration of higher sulfur

dioxide removal efficiencies in determining the MACT

standard for acid gases. NACAA Cmts., supra note 6,

at 9.

Petitioners’ exaggerated claims of widespread

adverse effects on industry and consumers are

contradicted by the actual experience of several states

that have already imposed standards at least as strict

as the MATS Rule. Given the record of successful

implementation of state standards more rigorous than

the MATS Rule, as well as state implementation of

other EPA rules requiring technological controls

similar to those required by the Rule, no practical

considerations warrant this Court’s review.

CONCLUSION

The petitions for writs of certiorari should be

denied.

Respectfully submitted,

MARTHA COAKLEY

Attorney General of Massachusetts

MELISSA HOFFER

Counsel of Record

TRACY L. TRIPLETT

Assistant Attorneys General

Environmental Protection Division

One Ashburton Place, 18” Floor

Boston, MA 02108

617-963-2322

melissa. hoffer@state.ma.us

Counsel for Respondent States and

Local Governments

Dated: October 15, 2014

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